The Supreme Court just issued its 5-4 decision in Harris v. Quinn. The Court upholds Abood, a First Amendment decision which upheld agency fee statutory requirements. However, the court refuses to extend that precedent to the quasi-employees in Harris. Law review commentary would be most welcome.

In case you have not seen it, a lower court in California struck down, on constitutional grounds, several provisions involving teacher tenure. Vergara v. California (Calif Superior Court, June 10, 2014). Frankly, I have never seen such a poorly written decision. The decision appears to be drafted by a law student. It is written in conclusionary form and does not contain very much analysis which supports its conclusion.

Though this appears to be a political, rather than legal decision, it has caused much public debate.

For those of you whom do not know, there is an extremely important public sector labor law case due out any day from the Supreme Court. It is Harris v. Quinn and it concerns the issue of whether employees could be compelled to pay union dues even though they choose not to join the union. An interesting LA Times article which summarizes the issues is available here.

Palladino v. CNY Centro, ___N.Y.3d___(April 8, 2014), is a major decision. In a 5-2 decision the New York Court of Appeals affirms the dismissal of a duty of fair representation case brought against a labor union that refused to take a discharge case to arbitration. Why, because each and every member of the union did not ratify the decision.

In so holding, the Court re-affirmed Martin v. Curran, 303 N.Y. 276 (1951) and quoted my article, Union Immunity from Suit in New York, 2 NYU J. L. & Bus. 641, 649 (2006). The Court correctly reasoned that NY still follows the common law which does not consider unincorporated associations to be juristic entities. Liability remains with the individual union members.

The Court noted the critisim that the Martin rule has received and the fact that it is virtually impossible for any labor union in New York to have common law liability.

The Court, however, noted that Plaintiff could have filed a DFR improper practice under the Taylor Law.

A United States District Court recently held ruled that legislation seeking toprohibit Graduate Student Research Assistants from forming labororganizations was invalid because it was adopted in violation of theMichigan Constitution . The decision will open the door for GSRA in theState of Michigan to decide if they wish to be represented by a union.

A union official submitted a Freedom of Information Law [FOIL] request to the New York Thruway Authority in an effort to “ensure that nonunion contractors comply with the prevailing wage law” (see Labor Law §220). Among other things, the official asked the Thruway to provide certified payroll records of a private nonunion contractor relating to work it performed on a public works project and the names and home address of the employees performing the work employed by the nonunion contractor.

The Thruway granted the official's request in part, providing employee titles and corresponding wage rates that were paid, redacting the employees' names, home addresses and Social Security numbers. The Thruway contended that providing the names and related information of the employees would constitute an unwarranted invasion of personal privacy within the meaning of FOIL.

After an unsuccessful administrative appeal, the official filed an Article 78 petition in Supreme Court seeking a court order directing the Thruway to provide him with the private employer’s employees' names and home addresses. Supreme Court dismissed the petition and official appealed that court’s ruling.

The Appellate Division, pointing out that the personal privacy exemption set out in Public Officers Law §87 [2] [b]) provides “a nonexhaustive list of categories of information that falls within the exemption.”

Where, however, none of the categories of exemption specifically cover the information demanded, the court said that the issue of whether there is an "unwarranted invasion" of privacy is decided "by balancing the privacy interests at stake against the public interest in disclosure of the information."

As to the balancing analysis, the Appellate Division said that “An unwarranted invasion of personal privacy has been characterized as that which ‘would be offensive and objectionable to a reasonable [person] of ordinary sensibilities.' Here the official wishes to obtain the names and home addresses so that it can contact employees of the nonunion contractor to find out if they were paid as reported by their employer.”

In the words of the Appellate Division, “The scenario of nonunion employees of a nongovernment employer being contacted at their homes by someone from a union who knows their names, their home addresses, the amount of money they reportedly earn, and who wants to talk about that income would be, to most reasonable people, offensive and objectionable.” This, the court characterized as “a significant privacy interest.” Citing United States Dept. of Defense v Federal Labor Relations Auth., 510 US 487.

Rejecting the union official’s argument that the release of this information to his union is in the public interest since the union is attempting to ensure that the contractor paid appropriate wages and that the union is gathering necessary data should an underpaid employee desire its representation under Labor Law § 220-g, the Appellate Division said that the redacted payroll records that the Thruway provided – indicating employee titles and corresponding wage rates — provide “sufficient information (absent fraudulent record creation by a contractor) to confirm whether the contractor complied with wage requirements.”

Further, explained the court, in the event fraudulent or any other noncompliant conduct is suspected, an investigation may be initiated upon request to the appropriate government official as Labor Law §220 (7) provides that a governmental fiscal officer "shall on a verified complaint in writing of any person interested or of [a union] [or] may on his [or her] own initiative cause a compliance investigation to be made to determine whether the contractor . . . has paid the prevailing rate of wages."

The Appellate Division’s conclusion” “Notwithstanding the FOIL presumption of access to information gathered by the government and the important policy of ensuring payment of prevailing wages, the significant personal privacy interests implicated here prevail, particularly since the information already provided to petitioner should be sufficient to ensure compliance; in any event, other avenues are available to ensure compliance without invading the privacy of the employees of the nonunion contractor by disclosing their names and home addresses.”

The point of that article is that attorneys are employees like anyone else. The rules are not any different simply because lawyers are involved.

There is a battle going on in Ohio whether Assistant Directors of Law for the Civil Division in the City of Cleveland are eligible for unionization. The issue boils down to whether or not these attorneys are public employees as that term is defined in the Ohio statute.

The City won round one in that the Ohio State Employment Relations Board held that the attorneys were not public employees because they act in a fiduciary capacity to public officals. A copy of the decision can be found by clicking Download SERB's Order Dismissing Req. Recognition The decision is a bit disappointing in that the Board merely rubber stamped the ALJ decision. One would think that on an issue so important that the Board would have at least offerred an opinion. Although I do not practice in Ohio, I would imagine that this is significant in that a court may not pay as much deference to a decision of an ALJ.

An appeal has, in fact, been filed in court. I would be interested in knowing if any readers are in attorney labor unions. If you are, leave a comment on this blog with a name of the union. You do not need to leave your name if you do not want too.

According to a February 2012 report by the National Association of State Retirement Administrators (NASRA), “on the average, pension costs for state and municipal governments are just shy of 3% of total spending.”

The NASRA report noted that “State and local government pension benefits are paid not from general operating revenues, but from trust funds to which public retirees and their employers contributed while they were working. …On average, public pension programs remain a small part of state and local government spending.”

NASRA’s calculations were based on the most-recent data then available from the U.S. Census Bureau. (Read more)

State Employee Bargaining Coalitation v. Roland, ___F.3d___( 2d Cir. May 31, 2013), is an important case. I am surprised that this case has not gotten alot of national press. The 2d Circuit holds that targeting Union employees for layoff violates the First Amendment. The court applies strict scrutiny and reasoned as follows:

We ourselves have stated thatit cannot “be questioned that the First Amendment’s protection of speech andassociational rights extends to labor union activities.” Conn. State Fed’n of Teachers v.Bd. of Educ. Members, 538 F.2d 471, 478 (2d Cir. 1976); see also Int’l Longshoremen’sAss’n v. Waterfront Comm’n of N.Y. Harbor, 642 F.2d 666, 670 (2d Cir. 1981) (“TheFirst Amendment’s protection of the right of association extends to labor unionactivities.”).However, we have never articulated a standard for determining whether, and underwhat circumstances, a public entity’s employment decisions violate this right to associatein unions. With respect to a public employee’s right to associate with political parties, theSupreme Court stated in Rutan v. Republican Party of Illinois that government employersmay not “condition[] hiring decisions on political belief and association . . . unless thegovernment has a vital interest in doing so.” 497 U.S. 62, 78 (1990); see also Branti v.Finkel, 445 U.S. 507, 520 (1980) (holding that termination of public defenders becausethey were not affiliated with Democratic Party violated First Amendment); Elrod v.Burns, 427 U.S. 347, 372-73 (1976) (holding that public employees who alleged theywere discharged because they were not members of sheriff’s political party stated a FirstAmendment claim); Keyishian v. Bd. of Regents, 385 U.S. 589, 609-10 (1967)(invalidating state university system’s prohibition on membership in Communist Party).The Supreme Court was concerned that the government would “wield[] its power tointerfere with its employees’ freedom to believe and associate,” Rutan, 497 U.S. at 76,and noted that “conditioning public employment on the provision of support for thefavored political party ‘unquestionably inhibits protected belief and association,’” id. at69, quoting Elrod, 427 U.S. at 359. It therefore held that hiring based on political partyaffiliation was subject to strict scrutiny and must be “narrowly tailored to further vitalgovernment interests.” Rutan, 497 U.S. at 74; see also Branti, 445 U.S. at 515-16(requiring “an overriding interest of vital importance” to fire a public employee solely forhis private beliefs (citation and internal quotation marks omitted)).Conditioning public employment on union membership, no less than on politicalassociation, inhibits protected association and interferes with government employees’freedom to associate. It is therefore subject to the same strict scrutiny, and may be doneonly “in the most compelling circumstances.” Rutan, 497 U.S. at 76.

BCB had rejected the Association’s improper practice charge challenging the New York City Fire Department’s decision to change the job requirements for the position of fire company chauffeur without first negotiating the proposed change with the Association.

Sustaining the Supreme Court’s ruling, the Appellate Division said that BCB's determination was neither arbitrary and capricious, contrary to law, nor an abuse of discretion, explaining that the “ … Fire Department's decision to alter the job requirements for the position … was within the sound exercise of its managerial discretion.”

The Collective Bargaining Agreement [CBA] between Ontario County and the Ontario County Sheriff's Unit 7850-01 provided that disputes over the meaning or application of the CBA were initially required to be submitted through the contract's grievance process. In the event the employee was "not satisfied" with the result obtained through that process, the Unit could submit the matter to arbitration .

The Ontario County Sheriff's Unit 7850-01 [Unit] filed grievances on behalf of two correction officers whose request for a shift exchange was denied. Contending that the denial "[v]iolated or [i]nvolved" the clause in the CBA that addressed "time exchanged between employees," the Unit informed County of its intent to seek arbitration.

The County thereupon filed a petition in Supreme Court pursuant to CPLR Article 75 to stay arbitration and the Unit "cross-moved" to compel arbitration.

The Appellate Division affirmed the Supreme Court’s ruling, noting that “A grievance may be submitted to arbitration only where the parties agree to arbitrate that kind of dispute, and where it is lawful for them to do so." In this instance,” said the court, “the parties do not challenge the lawfulness of arbitrating the instant dispute and, instead, [the County contends] that there is no valid agreement to arbitrate the grievances at issue inasmuch as the CBA did not contemplate shift exchanges."

The Appellate Division rejected the County’s argument, explaining that in determining whether the parties agreed to arbitrate the dispute at issue a court’s review “is limited to the language of the grievance and the demand for arbitration, as well as to the reasonable inferences that may be drawn therefrom"

In this instance, said the court, there is “a broad arbitration clause and a reasonable relationship between the subject matter of the dispute and the general subject matter of the parties.” Accordingly, the court decided that the was arbitrable and it was left to the arbitrator to make “a more exacting interpretation of the precise scope of the substantive provisions of the [CBA], and whether the subject matter of the dispute fits within them.”

In this appeal of a CPLR Article 78 decision by Supreme Court that sustained the New York City Department of Correction’s [DOC] finding that the individual [Appellant] was guilty of certain charges, the Appellant conceded that the Hearing Officer’s determination was supported by substantial evidence.

Rather, Appellant contended, the record before the Supreme Court was defective because it was incomplete in that it lacked a record of the disciplinary hearing, DOC’s answer, and a written statement by a Correction Officer that the Hearing Officer was required to show Appellant as required by “DOC Directive 6500R-B(III)(C)(25) and (26).”

The Appellate Division agreed, explaining that “it cannot be determined on this record whether the Hearing Officer's failure to show [Appellant] the written statement by [the Correction Officer] prejudiced Appellant's defense.

Accordingly, said the court, it was remanding the matter to Supreme Court and directed DOC “to submit an answer pursuant to CPLR 7804(d) and any appropriate submissions pursuant to CPLR 7804(e), including a record of the hearing and a written witness statement [by the Correction Officer].”

The ruling further provides that after DOC made such submissions to Supreme Court, Supreme Court is to determine if the failure to provide Appellant with these writings “was harmless error.”

A court in Arizona reportedly held that police could not use release time for union representationalwork. A newspapter article describing this case is available here. The plaintiff's theory appears to be that paying public employees for union business is a gift of public funds.

I do not buy this for a minute and it is just another example of anti-union animus that some people feel. I see this as no different than wages. A union also presents order in the workforce and that provides a benefit to the public. Preventing arbitrary employer action is also in the publics interest as most labor law statutes were enacted to reduce industrial strife. Public policy supports the right to organize and bargain collectively.

City of New Rochelle v New York State Pub. Empl. Relations Bd., 2012 NY Slip Op 08860, Appellate Division, Third Department

The City of New Rochelle and the Police Association of New Rochelle [PBA] entered into a stipulation of settlement to resolve the improper practice charge that the PBA had filed with PERB concerning “special duty details.” The stipulation set out the terms and conditions resolving the improper practice charge and included a provision that such "[a]greement and its subject matter [would] not be subject to the grievance and/or arbitration procedures contained in [the] collective bargaining agreement between [the City] and the [PBA], it would] be enforceable in a court of competent jurisdiction."

When the City entered into a written agreement with the New Rochelle Superior Officers' Association [SOA] allowing sergeants and lieutenants to work special duty details, the PBA, claiming that special duty details had previously been performed exclusively by its members, filed another improper practice charge with PERB.

The City, contending that the improper practice charge had its genesis in a contractual dispute earlier resolved with the stipulation between the City and the PBA, argued that PERB lacked subject matter jurisdiction.

A PERB Administrative Law Judge found that PERB did have jurisdiction over the underlying charge and, further, that the City had engaged in an improper practice when it unilaterally transferred exclusive bargaining unit work to nonunit employees. PERB affirmed the ALJ's decision and the City file initiated a CPLR Article 78 action challenging PERB’s determination.

The Appellate Division, noting that the City, as a public employer, is required to negotiate in good faith with the PBA regarding the terms and conditions of its members' employment said that Civil Service Law §205(5)(d) “makes clear that PERB ‘shall not have authority to enforce an agreement between an employer and an employee organization and shall not exercise jurisdiction over an alleged violation of such an agreement that would not otherwise constitute an improper employer or employee organization practice,’ and an ‘agreement,’ for purposes of the statute, includes collective bargaining agreements.”

Further, said the court, “PERB "has consistently interpreted [Civil Service Law §205 (5)(d)] to deprive it of jurisdiction over failure-to-negotiate improper practice charges when the underlying disputes are essentially contractual, in favor of resolving the dispute through the parties' grievance-arbitration machinery, or resort to the courts."

PERB, however, had rejected the City’s jurisdictional defense based on its earlier stipulation of settlement with the PBA, holding that while the stipulation addressed the issue of eligibility for special duty details did not expressly speak to the issue of the exclusivity of such assignments being vested in PBA unit members.

The Appellate Division disagreed, holding that PERB's own prior decisions make it clear that "[a] jurisdictional issue can be raised . . . even if the agreement [at issue] does not address specifically the particular allegations of the improper practice charge if the agreement is a source of right to the charging party with respect to the subject matter of the charge."

Accordingly, said the court, it was satisfied that the stipulation of settlement provides "a reasonably arguable source of right with respect to the subject matter of the [underlying improper practice] charge" -- even in the absence of an express reference to the issue of exclusivity and thus "PERB erred in summarily dismissing the City's jurisdictional defense and reaching the merits of the dispute."

The Appellate Division annulled PERB’s determination and remitted the matter to it for its consideration of whether the improper practice charged should be summarily dismissed at this juncture or, alternatively, conditionally dismissed pending judicial resolution of the underlying contractual dispute.

Wisconsin Educational Council v. Walker, ____F.3d___(7th Cir. Jan. 18, 2013), is an important case that you are going to hear more about. In a 74 page decision, the 7th Circuit upholds the constitutionality of Wisconsin Act 10, the so-called Budget Repair Bill,
Download WEAC v Walker -- 7th Circuit Decision

The major challenge was on equal protection grounds. Specifically, the statute creates two classifications of public employees; public safety employees and general employees whom the restrictive labor relations provisions apply to. The prohibition of payroll deductions was also challenged on First Amendment grounds. The court rejected each of these arguments.

The court applied the rational basis standard of review and concluded that the statute did not create view point discrimination. The court reasoned that differring treatment could be justified on the greater consequences of public safety worker strikes.

The court did acknowledge the unions' agrument that it was only those same public safety unions who supported Governor Walker for election. So much for view point discrimination.

When North Country Community College hired Shane Chatelle as its Facilities and Special Projects Manager in 2004, the College’s President provided Chatelle with a letter setting forth his salary and enclosing a copy of the resolution of its Board of Trustees approving the appointment together with a written statement of the Board's "management confidential"* staff policy “purporting to provide,” that among other benefits, that Chatelle would be compensated for up to 180 days of accumulated sick leave upon his severance from employment.

In 2011, Chatelle resigned from his position and requested compensation for his accumulated sick leave. The College, claiming that, despite the statement provided to him upon his appointment, its actual policy authorized compensation for accrued sick leave only upon retirement.

Chatelle sued, contending breach of contract, among other things. Supreme Court granted Chatelle’s motion in part, awarding him $44,114.96 in damages for breach of contract but dismissed his remaining claims. Chatelle and the College “cross appealed” the Supreme Court’s ruling.

The Appellate Division said that the written statement provided to Chatelle upon his employment indicated that he was entitled to "the benefits afforded by the existing [m]aster [a]greements except where modified or defined by the following [benefits]."

With regard to the sick leave benefit, the statement provided that Chatelle was entitled to 30 sick days per year, cumulative to 180 days and "[a]t [the] time of severance sick leave will be compensated."

Although the College, relying on extrinsic evidence, argued that the statement given to Chatelle was in error and that the Board had intended to adopt a policy that only compensated for sick leave at retirement, the Appellate Division said that had “no reason to consider this [extrinsic] evidence because the statement's language is clear and unambiguous.”

Accordingly, said the court, the College is bound by the terms of the writing provided to Chatelle as part of his employment contract “and may not rely on its unilateral mistake to void the agreement,” explaining that the text of the statement is clear and Chatelle does not rely on past practice nor claim “estoppel to enforce his contractual right.”

The Appellate Division, however, modified Supreme Court’s judgment granting Chatelle $44,114.96 as payment for his unliquidated sick leave accruals by reducing the award to $4,770, “representing [Chatelle 's] 159 accrued sick days at $30 per day."

* Presumably Chatelle was designated "managerial" or "confidential" within the meaning of §201.7 of the Civil Service Law [The Taylor Law] upon his appointment.

Town of New Windsor Town Justice Donald J. Suttlehan sued the Town, contending that it was in breach of contracts when it (1) eliminated his alleged entitlement, upon his retirement, to fully paid lifetime health care benefits for himself and his spouse [Decision 1] and (2) failing to pay him for his unused sick-leave credits upon his retirement [Decision 2].

On January 7, 2009, the Town adopted resolutions prospectively awarding Justice Suttlehan [a] “fully paid lifetime medical benefits for himself and his spouse” upon his retirement and [b] granted certain post-retirement health-care benefits to elected officials with eight years or more of service. On May 6, 2009 the Town adopted a resolution revoking its January 7, 2009 action with respect to providing “lifetime health care benefits” and Town modified its earlier “unused sick-leave” resolution in accordance with a new schedule.

Justice Suttlehan retired in July 2009. He then filed petitions in Supreme Court challenging the Town’s actions that he alleged truncated certain benefits to which he claimed he was entitled upon his retirement..

With respect to his claim to “lifetime medical benefits,” Justice Suttlehan alleged “breach of contract and promissory estoppel….” He argued that, among other things, that the Town’s January 7, 2009 resolution imposed a contractual obligation upon the Town to provide him with lifetime medical benefits or, in the alternative, that, by adopting the resolution, the Town became obligated to provide him with those benefits under the theory of promissory estoppel.

The Appellate Division sustained the Supreme Court’s dismissal of Justice Suttlehan’s petition, holding that the Town had met its “prima facie burden of establishing that [it was] not obligated to provide lifetime medical benefits to the plaintiff and his spouse, and the plaintiff failed to raise a triable issue of fact in opposition.”

The Appellate Division said the resolution dated May 6, 2009, which revised Justice Suttlehan’s health-care benefits only with respect to coverage for claims made, or to be made, subsequent to his separation from Town employment, was not discriminatory as it was applicable to various elected officials -- the Town Supervisor, Town Clerk, Superintendent of Highways, Receiver of Taxes, Town Justices, and members of the Town Board -- as well as to the Town’s judiciary.

Rejecting Justice Suttlehan’s argument that the resolution violated his rights pursuant to the separation of powers doctrine or the compensation clause of the New York Constitution, the Appellate Division noted that the resolution addressed the prospective reduction of a municipal official's health benefits only after his or her retirement, not the reduction in the salary or benefits of a justice during his or her term in office.

In any event, said the Appellate Division, "[a] municipal resolution is, in general, a unilateral action that is temporary in nature and, thus, it does not create any vested contractual rights," citing Aeneas McDonald Police Benevolent Assn. v City of Geneva, 92 NY2d 326.

As to Justice Suttlehan’s cause of action to recover damages for breach of contract with respect to the liquidation of his unused sick-leave credits, Supreme Court held that he was entitled to payment for 397 unused sick days, The Town appealed the court’s decision.

The Appellate Division vacated the Supreme Court’s ruling, holding that "In general, a public employee whose employment has terminated may not recover the monetary value of unused . . . sick time in the absence of statutory or contractual authority."

The Town, said the court, had met its prima facie burden of showing its entitlement to judgment as a matter of law by demonstrating that there was no statutory or contractual authority for the relief sought by Justice Suttlehan and Supreme Court should have dismissed the Justice’s cause of action to recover damages for breach of contract with regard payment for his unused sick-leave credits.

The New York State Public Employment Relations Board’s [PERB] “deferral policy” in cases alleging "improper practices" was challenged by Westchester County. The County contended that the policy constituted “an abandonment of the exclusive, nondelegable jurisdiction over improper practice charges granted to PERB by Civil Service Law §205(5)(d).”

Essentially, PERB’s policy utilized an agreed-upon binding arbitration procedure set out in a collective bargaining agreement between the parties to resolve a “claimed improper practice” before it would consider the allegation.

The union had filed an improper practice charge with PERB alleging that the County had refused to negotiate an issue concerning the "maintenance of standards" clause in the governing collective bargaining agreement in violation of Civil Service Law §209-a(1)(d).

When PERB applied its deferral policy and conditionally dismissed the charge pending the outcome of binding arbitration conducted pursuant to the negotiated grievance procedure over Westchester's objections, Westchester filed a petition in Supreme Court appealing its ruling.

Supreme Court dismissed the County’s petition, agreeing with PERB that the charge raised an issue covered by the CBA and thus provided a reasonable basis for PERB to apply its policy of deferring the matter to binding arbitration. The Appellate Division agreed, noting that PERB had earlier ruled on this issue, which decision was affirmed in Matter of Westchester County Police Officer's Benevolent Assn. v Public Empl. Relations Bd., 301 AD2d 850. This, said the Appellate Division, gave the union “a reasonably arguable right to submit the conduct alleged in the improper practice charge to binding arbitration.”

The Appellate Division, in sustaining the lower court’s ruling and dismissed the County’s appeal, explained:

1. The application of the policy resulted in a conditional dismissal, meaning that the improper practice charge remains subject to being reopened before PERB after the conclusion of the arbitration process; and

2. The courts have generally deferred to PERB's interpretation of its jurisdiction under Civil Service Law §205(5)(d), citing Matter of Roma v Ruffo, 92 NY2d 489.

May an employer prohibit an individual it has dismissed from entering its property? The Second Circuit Court of Appeals ruled the employer may prohibit such an individual from entering its non-public areas.

A Transportation Workers Union representative had been dismissed from his position with the New York City Transit Authority [NYCTA]. NYCTA then banned the representative from the non-public areas of its property. The representative sued, contending that this action by NYCTA violated his First Amendment rights.

The Circuit Court affirmed a federal district court's dismissal of the Union representative’s petition. The lower court had determined that he "failed to show a likelihood of success on the merits" because:

1. He did not demonstrate that he was excluded from non-public areas because the Transit Authority's motivation was to impair the exercise of his First Amendment freedoms or;

The representative also attempted to obtain a stay of arbitration, claiming that NYCTA and Local 100 went forward with his arbitration "without allowing him to participate in selecting a neutral arbitrator to chair the arbitration panel." The Circuit Court of Appeals rejected this representation as moot "because the arbitration [had] proceeded to conclusion."

Newspapers and others have published articles about a United States Circuit Court decision that concluded that the federal Merit Systems Protective Board cannot consider appeals from federal workers demoted or terminated from their position based on their lack of “security clearance.”

The Circuit Court held that ”the Board cannot review the merits of Executive Branch agencies’ national security determinations concerning eligibility of an employee to occupy a sensitive position that implicates national security.”

In response to a number of inquiries seeking a copy of the decision, the case is Berry [as Director, Office of Personnel Management] v Conyers and Northover and the Merit Systems Protective Board, # 2011-3207, Petition for Review of the Merit Systems Protection Board in Consolidated Case Nos. CH0752090925-R-1 and AT0752100184-R-1, US Circuit Court of Appeal, Federal Circuit.